904

SECESSION A USURPATION.

the provisions of the organic law. As was finely shown in Texas v. White, the theory of the Constitution is an indestructible union of indestructible States; and the maintenance of the States and the preservation of their governments are as much within its scope as the preservation of the Union and the maintenance of the national government; and the fabric would be at the mercy of events if the sins of the legislature or a convention, could be imputed to the State which they affected to represent, and a conflict ensue, with the consequences incident to a war among sovereigns.

1 Texas v. White, 7 Wallace, 700; Thorington v. Smith, 8 Id. 1; Keith v. Clark, 97 U. S. 454, 465.

LECTURE XLI.

Whatever Force is requisite for the Protection of Individuals or the Community is lawful. - The Principle applies in Peace, but has a Wider Scope during Insurrection or Invasion. Arms may be used by the Sheriff in dispersing a Mob, and the Military employed in Aid of the Civil Power. - Soldiers act on such Occasions as Special Constables, and are answerable to the Law in Court for their Conduct.― Goods may be thrown Overboard during a Storm to preserve the Vessel, or a House blown up to arrest a Conflagration. - Destruction of Property during War to prevent it from falling into the Hands of the Enemy rests on the same Principle. An Unlawful Command is not a Justification, though coming from the Chief Magistrate, a Court, General, or other Military or Civil Superior. A Naval Officer or Collector is answerable for the Illegal Seizure of a Vessel under Instructions given by the President. A Recovery in Damages may be had against a General or the Officer acting at his Command for the Seizure of Property during a Campaign, unless the Need was urgent or the Defendant had Probable Cause for so regarding it. What constitutes such a Cause is an Inference of Law from the Facts, but the Facts are for the Jury.

AN account of the Constitution of the United States would manifestly be incomplete without an examination of the powers which belong more peculiarly to a state of war. These attained dimensions during the Great Rebellion which were probably not anticipated by the founders of the Republic; and it is important to ascertain the principles by which they are governed, and to what their growth may ultimately tend. Such an investigation does not necessarily embrace those powers which, although designed to provide for war, may legitimately be exercised by way of precaution during peace. Congress may, for instance, raise and support armies, and make rules for the government of the land and naval forces of the United States in the discharge of their ordinary functions, whether war does or does not exist. And a similar

906

WHATEVER FORCE IS REQUISITE

remark may be made with reference to the larger part of the powers of the President as commander-in-chief.

War nevertheless requires the application of doctrines which, though not abnormal, have but a limited application in time of peace, and is another name for the use of force under circumstances requiring instant action. Without introducing a new principle, it enlarges the operation of principles which are inherent in the common law, and may be summed up under the head of national and personal selfdefence, or that whatever force is requisite for the protection of individuals or the community is lawful.1

When a riot assumes such proportions that it cannot be quelled by ordinary means, and threatens irreparable injury to life or property, the sheriff may call forth the posse comitatus and exercise an authority as their chief which can hardly be distinguished from that of a general engaged in repelling a foreign enemy or subduing a revolt. Arms may be used as in battle to bear down resistance; and if loss of life ensues, the circumstances will be a justification. The measure does not, however, cease to be civil, or fall beyond the rules which apply when a house is entered in the night by burglars, or a traveller shoots a highwayman who demands his money. Nor will it change its character because the military are called in and the sheriff delegates his authority to the commanding officer. As Lord Mansfield showed in the debate on the Lord George Gordon riots in 1780, soldiers are subject to the duties and liabilities of citizens although they wear a uniform, and may, like other individuals, act as special constables or of their own motion for the suppression of a mob, and if the staff does not suffice employ the sword. The intervention of the military does not introduce martial law in the sense in which the term is understood under despotic governments, and even by some distinguished jurists, because, agreeably to the same great magistrate and the settled practice in England and the United States, they are liable to be tried and punished for any excess or abuse of power, not

1 See the Case of the King's Prerogative in Saltpetre, 12 Reports,

by the martial code, but under the common and statute law.1

A riot is not the only instance where necessity may confer powers that are unknown to the ordinary course of law; another may arise out of a conflagration. Ordinarily a man's dwelling is sacred to himself and his family, a retreat which none can violate without the express mandate of the law. And yet it is every day's experience that when a fire occurs in a town or village the neighbors may enter without consulting the owner to extinguish the flames.2 The axe may be applied to the roof or walls, and part of the premises demolished to save the rest or the adjacent property. And so far does this go that if the flames attain such a height that they cannot be arrested by ordinary means, the inmates of a house which is not on fire may be summarily ejected and the building blown up with gunpowder or destroyed by any other convenient means.3

Such cases depend on the right of the Commonwealth as an organic whole, and of individuals acting on her behalf, to do whatever is indispensable for the protection of life, liberty,

121 Parliamentary History, 695; Adolphus' History of England, iii. 297; 7 State Trials, 47; Rex v. Pinney, 5 Car. & Payne, 262; The Case of Arms, Popham, 121.

"Our soldiers are the king's subjects as well as other men, and it is well known that most of our magistrates, especially those concerned in the execution of the law, have a power to call on any of the king's subjects they can see to their assistance for preserving the peace or for enabling them to execute any of the king's writs; and in case of any such call, we likewise know that every one of the king's subjects is obliged to obey. . . . Why, then, may not a civil magistrate call the soldiers to his assistance as well as other men? . . . Therefore, while the king's troops act under the direction of the civil magistrate, and as his assistants only, we shall be as much under civil government as if we had no such troops." Lord Hardwicke's speech in the Lords, Feb. 10, 1737 (9 Parl. History, 1297).

2 The King's Prerogative in Saltpetre, 12 Reports, 12; Mouse's Case, Id. 63.

8 Case of the Prerogative, 12 Coke, 13; Hale v. Lawrence, 1 Zabriskie, 714. See Philadelphia v. Scott, 81 Pa. 80, 85; The Mayor of New York v. Lord, 17 Wend. 285; 18 Id. 12; The Governor, etc., v. Monteith, 4 Term Reports, 794. See also ante, p. 761.

VOL. II. -17

908

NECESSITY AS A JUSTIFICATION

and property, which is known in peace as the police power, and designated in war as martial law.1 The right to act under such circumstances is not confined to public officers or persons acting under an authority conferred by statute; and

1 See ante, pp. 761, 784. That such a principle exists, and may justify acts which would otherwise be wrongful, is shown by the following citation from the King's Prerogative in Saltpetre, 12 Coke, 13: "Although the king cannot take the trees of the subject growing upon his freehold and inheritance, as it was now lately resolved by us the justices of England; and although he cannot take gravel in the inheritance of the subject for reparation of his houses, as the book is in 11 Hen. IV. 28, - yet it was resolved that he may dig for saltpetre for this that the ministers of the king who dig for saltpetre are bound to leave the inheritance of the subject in so good plight as they found it, which they cannot do if they might cut the timber growing, which would tend to the disinheritance of the subject, which the king by prerogative cannot do, for the king (as it is said in our books) cannot do any wrong. And as to the case of gravel, for reparation of the houses of the king, it is not to be compared to this case; for the case of saltpetre extends to the defence of the whole realm, in which every subject hath benefit. But so it is not in the case of the reparations of the king's houses; and therefore it is agreed in 13 Hen. IV. and other books that the king may charge the subject for murage of a town to which the subjects were charged in the time of insurrection or war for safety, and so for pontage, for this that he which is charged hath benefit by it; but the king cannot charge the subject for the making of a wall about his own house, or for to make a bridge to come to his house, for that does not extend to public benefit. But when enemies come against the realm to the sea-coast, it is lawful to come upon my land adjoining to the same coast to make trenches or bulwarks for the defence of the realm, for every subject hath benefit by it, and therefore by the common law every man may come upon my land for the defence of the realm, and in such case on such extremity they may dig for gravel for the making of bulwarks; for this is for the public, and every one hath benefit by it. But after the danger was over, the trenches and bulwarks ought to be removed, so that the owner shall not have prejudice in his inheritance. And for the commonwealth a man shall suffer damage; as for saving of a city or town a house shall be plucked down if the next be on fire; and the suburbs of a city in time of war for the common safety shall be plucked down; and a thing for the commonwealth every man may do without being liable to an action, as it is said 3 Hen. VIII. fol. xv; and in this case the rule is true, Princeps et republica ex justa causa possunt rem meam auferre. It was resolved that this making of saltpetre is a purveyance of it for the making of gunpowder for the necessary defence of and safety of the realm.”